Marx

This is an appeal from a judgment in favor of the defendant, and from an order denying plaintiff’s motion for a new trial.

Louis Titus was the grantee named in a deed of grant, bargain and sale made by the defendant, and this action is by the assignee of Titus for an alleged breach of the covenant against encumbrances implied in the grant deed. The encumbrance is alleged to consist of the lien of a street assessment, created through proceedings taken by the city of Oakland, pursuant to the provisions of the so-called Vrooman act, [Stats. 1885, p. 147].

By the complaint it appears that a part of the land conveyed to Titus was included within the assessment district defined by the resolution of intention. The assessment, warrant, diagram and certificate were issued and recorded November 14, 1904. The deed of conveyance was executed November 30, 1904. In order to discharge the lien of the assessment Titus paid the amount thereof on December 30, 1904. The complaint also shows that E. B. & A. L. Stone Company was the contractor; that before the work was finished J. Y. Eecleston by mesne assignments became the holder of said contract, and to him on November 14, 1904, the…